Ferguson v. Hjelle

• Decision Date: 21 September 1970
• Docket Number: No. 8646,8646
• Citation: 180 N.W.2d 408
• Parties: Clara B. FERGUSON, Plaintiff and Respondent, v. Walter R. HJELLE, as North Dakota State Highway Commissioner, and the North Dakota State Highway Department, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 408

180 N.W.2d 408

Clara B. FERGUSON, Plaintiff and Respondent, v. Walter R. HJELLE, as North Dakota State Highway Commissioner, and the North Dakota State Highway Department, Defendants and Appellants.

Civ. No. 8646.

Supreme Court of North Dakota.

Sept. 21, 1970.

Syllabus by the Court

1. When the trial court consolidated two State highway land condemnation cases involving different landowners and different land, for purposes of trial only, and thereafter the State Highway Commissioner appealed from the order of the trial court granting a new trial as to one of the cases, the transcript of the trial court proceedings as it related to the evidence of the other case, in which no appeal was taken, is not material in a determination of the issue of the insufficiency of the evidence to support the jury's verdict in the case which was appealed.

2. Unless objection is made in the trial court that one has failed to particularize the insufficiency of the evidence to support a verdict in a motion made pursuant to Section 28--18--09, N.D.C.C., such an objection will not be considered in the supreme court.

3. A motion for a new trial upon the ground of the insufficiency of the evidence is addressed to the sound discretion of the trial court, and the granting of such a motion will not be disturbed upon appeal except for a manifest abuse of that discretion.

4. A motion for a new trial on the ground of insufficiency of the evidence to justify the verdict invokes the discretion of the trial court, but the discretion is a legal discretion and not an arbitrary one, to be exercised in the interest of justice, and where the motion is granted it must appear that the alleged cause or ground had an actual existence.

5. Since the determination of damages in a condemnation case is primarily the responsibility of the jury, when the trial court set aside the verdict and granted a new trial on the ground of insufficiency of the evidence, with no more explanation than that it was shocked with the verdict, and when there was nothing in the record of the case to support the court in its action, the trial court abused its discretion, and its order must be reversed.

Helgi Johanneson, Atty. Gen., and Myron E. Bothun, Special Asst. Atty. Gen., Bismarck, for appellants.

Tenneson, Serkland, Lundberg & Erickson, Fargo, for respondent.

ERICKSTAD, Judge.

Walter R. Hjelle, as the North Dakota Highway Commissioner, and the North Dakota State Highway Department appeal from the order of the district court of Traill County, dated July 18, 1969, which granted a new trial to Clara B. Ferguson, a landowner, in an eminent domain proceeding. We shall hereinafter refer to the latter-named person as Mrs. Ferguson and to the former-named parties as the Commissioner.

The pertinent part of the order granting the motion for a new trial reads:

The Motion was based upon the insufficiency of the evidence to justify the verdict and also that the Court should on its own motion grant a new trial in the furtherance of justice. The matter was presented to the Court on the briefs of the parties, by oral argument and upon the minutes of the Court.

It appears to the Court that damages other than severance damages were adequate but that the allowance of severance damages in the amount of $4,975.00 was so inadequate that the Court was shocked when the verdict of the jury was read; that the evidence would have warranted a much larger verdict for severance damages and the severance damages so allowed are not supported by the evidence; that damages proven by a preponderance of the evidence were much higher than awarded by the jury; that it is in the best interests of justice and in furtherance of justice that a new trial be granted on the Motion relating to insufficiency of the evidence to support the verdict and on the Court's own motion where the verdict was so low in relation to the evidence that the Court was shocked thereby, it is therefore

ORDERED, that Clara B. Ferguson be given a new trial and the new trial is to proceed solely on the question of severance damages.

The Commissioner asserts the following specifications of error:

I.

That the District Court erred in granting the Motion for a New Trial in that said Motion did not set forth adequate grounds for the granting thereof.

II.

That the District Court erred in granting the Motion for a New Trial in that the testimony and the law of the case provide sufficient evidence and authority to justify the jury verdict.

III.

That the District Court erred in asserting that the new trial was granted by its own Motion, the same having been initiated by the Respondent.

IV.

That the District Court erred in determining the land value in the case and ordering the new trial as to severance damages, the latter item being dependent upon land value.

The motion on which the trial court acted to grant a new trial is in three parts. It asserts (1) that the evidence is insufficient to justify the verdict; (2) that the verdict is against the law; and (3) that the verdict of $4,975 for severance damages is so inadequate as to show disregard for the instructions rendered, evincing a verdict which was the result of confusion and misunderstanding on the part of the jury. In support of the three asserted reasons for granting a new trial, Mrs. Ferguson in Paragraphs a. through i. compares the Buringrud property with the Ferguson property and attempts with this comparison to show the inadequacy of the award of severance damages for the Ferguson property.

It is to be noted that the case of the condemnation of the Buringrud property, involving land lying adjacent to the Ferguson property, was consolidated for trial with the Ferguson condemnation case.

The motion for new trial concludes with a paragraph relative to the application of Rule 59(g) of the North Dakota Rules of Civil Procedure, which paragraph follows:

In addition to the adequacy of damages, the Court should grant a new trial on its own motion under rule 59(g) for the reason that the inadequate verdict demonstrates a disregard by the jury of the Court's instructions and the evidence in this case; that the verdict was rendered under misapprehension in treating the Buringrud and Ferguson cases as similar for purposes of awarding damages; that the consolidation of the Ferguson case with the Buringrud case, now that the trial has been had and the results are in, resulted in an unfair trial to the smaller owner and that a conflict existed through the Ferguson land being surrounded by the Buringrud land; a fight between Buringrud and Ferguson over this point as well as respective severance damages in the trial would have been unthinkable yet it is a large feature in the case; that the trial of the consolidated action failed to give justice to Ferguson and to compensate her within the intent of the Constitution of North Dakota and the laws thereunder.

Subsections (b), par. 6, (g) and (i) of Rule 59 of the North Dakota Rules of Civil Procedure are pertinent to the determination of the issues in this case.

Because we consider the comparison between the Buringrud land and the Ferguson land and the severance awards to each as immaterial, we shall not consider in this appeal the Buringrud transcript which the trial court has certified to this court, nor those parts of the specifications of error contained in the motion for new trial, as they relate to said comparisons, the said cases being separate and distinct and having been consolidated only for purposes of trial.

In support of specifications of error No. 1 and 2, the Commissioner refers us to Section 28--18--09, N.D.C.C., which reads:

Specifications of errors and insufficiency of the evidence.--A party desiring to make a motion for a new trial or to appeal from a judgment or other determination of a district court or county court with increased jurisdiction, except upon appeals triable de novo in the supreme court, shall serve with the notice of motion, or notice of appeal, a concise statement of the errors of law he complains of, and if he claims the evidence is insufficient to support the verdict or that the evidence is of such character that the verdict should be set aside as a matter of discretion, he shall so specify. A specification of insufficiency of the evidence to sustain the verdict or decision of the court shall point out wherein the evidence is insufficient and it shall be proper to include in such specification, specifications of facts conclusively established, together with the facts claimed not to be established, in such manner as to show intelligibly wherein, on the whole case, the verdict or decision is not supported by the evidence.

§ 28--18--09, N.D.C.C.

In support of his position that the insufficiency of the evidence was not set forth with sufficient particularity to comply with Section 28--18--09, N.D.C.C., the Commissioner refers us to a decision rendered by this court in 1961, wherein we said:

* * * the reason for requiring particularity and detail in the statement of 'grounds' is: First, to spare the court a search of what may be a long record, and to direct its attention to what is claimed to be at fault. Second, to advise opposing counsel so that he may properly contest the matter in the trial court. Third, to provide a record for appeal so that an appellate court can judge the merits of the claims and contentions made. Nor can it be said that these requirements are technical obstacles to a moving party seeking justice.

Sullwold v. Hoger, 110 N.W.2d 457, 459 (N.D.1961).

On the other hand, Mrs. Ferguson points out that if the objection as to particularity is not made in the trial court, it should not prevail in the supreme court, as the requirement of specifying with particularity is...